Ideas & Trends

Casting Pebbles in the War Against Adultery

By JAN HOFFMAN

Published: May 18, 1997

TO the Air Force, a 26-year-old bomber pilot who fell hard for a four-star bad boyfriend deserves to be court-martialed for a handful of military crimes including adultery, the quintessentially biblical sin. To most Americans, she does not. They have been reacting with amazement, not least because for decades, civilian courts have responded to adultery with a big yawn.

It's not that adultery laws don't exist. It's that they're not enforced. Although 75 percent of Americans believe adultery is always wrong, the lack of enforcement reflects a certain ambivalence over whether the government should be peeping into bedrooms.

In half the states, adultery is still a crime. In some, including Oklahoma, Idaho, Michigan, Wisconsin and Massachusetts, it's even a felony. Professor Katharine B. Silbaugh of Boston University law school, a co-author with Richard A. Posner, a Federal judge, of ''A Guide to America's Sex Laws'' (1996), said state laws vary according to which lover should be prosecuted: ''The married one will always be guilty,'' she said, ''but the question is whether the unmarried one is also guilty.''

According to her guidebook, in Arizona, for example, both parties are guilty of a misdemeanor, as long as one is married. By contrast, the District of Columbia holds that when the act is between a married woman and an unmarried man, both parties are guilty, but that when the lovers include a married man and unmarried woman, only the man is guilty.

Maryland has declared adultery a misdemeanor, but the punishment is just a $10 fine. (Some people have quipped that the state income tax could be jettisoned altogether if the fine were raised to $1,000 and platoons of officers unleashed to enforce the law.) And in Minnesota, the misdemeanor of adultery, said legislators in 1963, is an act between a married woman and a man other than her husband. Sex between a married man and an unmarried woman is not prohibited.

Prosecutions, though rare, are not unheard of. Professor Silbaugh said they usually accompany another crime, or are used to go after troublemakers. And so in 1970 a Pennsylvania jury found a man guilty of adultery and bastardy, and the case, which resurfaced in the courts 13 years later, was used to compel the defendant to keep up his child support payments.

Tracked Down in Worcester

In 1983, a Worcester, Mass., woman challenged the constitutionality of the state adultery law, for which she was arrested after police officers watched her get into a van with a man and have sex with him. But the Supreme Judicial Court of Massachusetts said that although her concerns about a right to privacy had merit, the state had an interest in prohibiting conduct that would threaten the institution of marriage.

And in 1990, a 28-year-old Wisconsin woman was arrested for the felony of adultery after her husband swore out a criminal complaint. Charges were dismissed after she agreed to go for counseling, but the case created an uproar. A state legislator wanted to decriminalize adultery, but beat a hasty retreat when voters warned him they considered his proposal an affront to family values.

The Air Force is more vigilant -- the service brought 67 adultery prosecutions last year -- but surely those numbers don't reflect the incidence of adultery in its ranks. Against that backdrop, the court-martial faced this week by First Lieut. Kelly Flinn, a young, single woman, struck many as unfair. If she had been a civilian, she wouldn't have been charged; she would have been comforted.

Adultery is considered even less odious in divorce court than in criminal court. Following the divorce reform of the 1970's, all states have no-fault divorce, which means that a party no longer has to allege a specific fault, like adultery, as grounds. A minority of states also allow adultery as grounds, but that usually only serves to speed the process.

In fact many heartsick spouses who fantasize that a judge will wreak vengeance on the philanderer are shocked to learn that when it comes to divorce court, the only cheating a judge cares about is on income reporting. And just a handful of states say that if adultery is at issue, a judge may, but not must, consider it a factor in the division of marital property.

In truth, the Seventh Commandment just doesn't pack the same oomph anymore. The term ''adultery'' -- as distinguished from the practice -- has grown dusty from lack of use. Instead, today's descriptive language dilutes condemnation with a drop of wistfulness. Philanderer, rather than adulterer. A faithless spouse has wanderin' eyes, a cheatin' heart. Even more watered down -- has an extramarital affair. Sex opinion surveys ask: ''Have you ever had sex with someone other than your spouse while you were married?'' A tenet of the anti-divorce movement is that couples should repair the breach of marital trust exposed by the affair, because divorce is a far greater family crime than adultery.

''One can believe adultery is improper and wrong but not something that you should necessarily be punished for,'' said Stuart Michaels, a co-author of the ''Sex in America'' survey published in 1992.

Indeed a smattering of states have no adultery statutes, criminal or matrimonial. Not Hawaii, a honeymoon mecca. Not California, certainly. And not Nevada, which has quickie divorces, quicker marriages and ubiquitous brothels: anti-adultery laws would be just plain bad for business.

Photo: Once, adultery was a crime and then some. In ''The Scarlet Letter,'' Hester Prynne is led to judgment. (From ''Our Literary Heritage'')